CHAPTER XVI
SUBMISSION OF AMENDMENTS
[§1. Necessity of submission of convention result to ratification by the
people.]
{193} OF the original constitutions of the thirteen colonies, only those of
New Hampshire and Massachusetts were formally submitted to a vote of the
people, although in several other instances an informal canvass was made.
The Vermont constitution of 1786 and the Georgia constitution of 1789 were
ratified by different bodies from those that framed them, these second
bodies being chosen by a direct vote of the people for that purpose. The New
Hampshire constitution of 1792, the Connecticut constitution of 1818, and
the Maine constitution of 1819 were submitted to a popular vote. New York
followed in 1821. The popular submission of constitutions first developed in
New England, largely, it would seem, because there alone the people had in
their town meetings workable instruments for the expression of popular
sentiment upon such a question.[1] This policy soon became general, although
it received a setback in the South during the Civil War, doubtless because
of fear of the negro vote. Most of the reconstruction constitutions were
voted on by the people, although secessionists were excluded from voting.
Since 1890 fourteen State constitutions have been adopted. Seven of these
were submitted to a vote of the people; six were adopted without submission;
and one, that of Kentucky in 1891, was altered by the convention after it
had received the popular approval.[2]
Dodd says:
In view of the facts discussed above, I think that it is
impossible to assert, as Judge Jameson did, that the
submission of a constitution to a vote of the people is
imperatively required by some customary constitutional
law of this country, or even to say that {194} a legislature
in calling a convention may effectively bind such a body to
submit its work for the approval of the people. We are,
then, forced to the conclusion, that at present the only
rules positively binding a convention to submit its
constitution to the people are those contained in the
constitution which the convention may have been called to
revise. Of the thirty-four state constitutions which contain
provisions regarding constitutional conventions, seventeen
require that constitutions framed by such conventions be
submitted to the people. As has been suggested, however,
all of the states, with the exceptions just referred to, have
followed the same rule since 1840. Of only two states --
Delaware and Mississippi -- may it be said that the
practice is opposed to a convention's submitting the results
of its labors to a vote of the people.[3]
[§2. Instances of convention refusing to submit its changes to the people.]
There are no recorded instances of a convention refusing to submit the fruit
of its labors to the people when required by express constitutional
provision. There have been instances, however, in which conventions have
disobeyed similar express requirements of the convention act. But, if a
convention act voted on by the people acquires from this vote a
supraconstitutional force,[4] it would seem that its provisions ought to be
even more binding than those of the constitution.
In Virginia, in 1901, the question of holding a convention was voted upon by
the people as required by the constitution of 1870; and the subsequent
legislative act authorizing the convention provided that the constitution
framed by it should be submitted to a vote of the people. However, the
convention did not submit its constitution, largely, it would seem, for fear
of its being defeated by the elements to be disfranchised, in combination
with interests adversely affected by the new constitution.[5] The general
sentiment of the bar of the State was that the second act, not having been
voted on by the people, was not binding upon the convention.[6]
The Illinois convention of 1847 declared one article of the constitution to
be in force without submission to the people, although the convention act
(purely legislative in its character) required the submission of all
amendments.[7]
{195} These really are the only instances of conventions disregarding the
convention act in this respect, although Dodd also cites that of the
Kentucky convention of 1890-1891.[8] This case however, falls under the
implied power of a convention to codify and perfect its constitution after
ratification by the people,[9] for the Kentucky convention did obey the
requirement that it should submit its constitution to the people. But even
if we consider this case as an instance of disregard of the convention act,
it may be differentiated because of the fact that the Kentucky act was the
creature of the legislature alone and hence might properly be disregarded by
the convention. Both the Kentucky and Virginia courts recognized these
constitutions as valid; basing their recognition, however, on popular
acquiescence rather than on the validity of the proceeding itself.[10]
[§3. Popular submission if convention extraconstitutional or convention act
by people requires it.]
The provision for popular submission contained in a convention act which has
not been voted on by the people has, nevertheless, been declared by the
Pennsylvania Supreme Court to be binding, on the ground that the people
elected their delegates under the act, relying on its terms. The court said:
When the people voted under this law, did they not vote
for delegates upon the express terms that they should
submit their work to the people for approval? Did not
every man who went to the polls do so with the belief in
his heart that, by the express condition on which his vote
was given, the delegates could not bind him without his
subsequent assent to what the delegates had done? On
what principle of interpretation of human action can the
servant now set himself up against the condition of his
master and say the condition is void? Who made it void?
Not the electors; they voted upon it.[11]
We have already seen that it is the general custom to submit constitutional
changes to the people, even when not required by the express terms of the
convention act. In fact, there have been expressions of opinion to the
effect that the action of an extraconstitutional convention has no validity
until ratified by a popular vote. Thus Ruling Case Law says:
{196} The new constitution prepared by a convention
derives its force from the action of the people and not
from that of the legislature which may have issued the call
for the constitutional convention.[12]
Judge Morton of the Massachusetts Supreme Court said, in the Massachusetts
convention of 1853:
If the people choose to adopt what we submit to them, it
then becomes authoritative -- not because it comes from
a legally constituted body, but because the people choose
to adopt it.[13]
But both of these proceeded upon the theory that it was the legislature
alone which called the convention. If that be true, then certainly the work
of the convention must be submitted to the people, in order to give the
convention any standing at all.
[§4. Time of submission of convention result to ratification by the people.]
Having discussed the question of necessity of submission, we next come to
the question of time of submission. When the determination of the time for
submission has been left to the convention, has the legislature the power to
change it? The Lecompton controversy in Kansas arose on just this point. The
convention, which was pro-slavery, arranged for the submission of two
alternative forms of its constitution at an election to be held in December,
1857. Thereupon the free-state legislature, which convened four days before
the date set for this election, voted to submit the constitutions in
January. Only slavery men participated in the first election and only
free-staters in the second, with the result that the most pro-slavery of the
two constitutions was carried in December, and both were rejected in
January. No decision was reached as to which was the valid action, for
President Buchanan and the national Senate deadlocked with the national
House on the question.[14]
For the legislature to change the time for submission, if the time was set
by the people, would amount to an illegal attempt at amending the convention
act;[15] and regardless of the source {197} of the act, would amount to an
illegal attempt to restrict the convention.[16]
A somewhat similar question, however, arose more recently in New Hampshire.
The question involved was as to the time of taking effect of the amendments
proposed by the convention of 1889. The Supreme Court held that although
this question was a matter primarily for the legislature, yet as the
convention had acted and issued an ordinance decreeing that the amendments
should take effect when voted on, the amendments had so taken effect, and it
was thereafter too late for the legislature to change the date. This
opinion, although delivered in 1889, was not published in the New Hampshire
reports until 1911.[17] This same opinion points out that the practice in
New Hampshire has been for the legislature to delegate to the convention the
legislative power of determining when the amendments should take effect. If
no time were fixed, the amendments would take effect upon their
ratification.
A Constitution, or an amendment, takes effect on the day of its adoption by
the people, unless otherwise provided in the existing Constitution, or by
the Convention acting under legislative authority.[18]
When the time for submission is prescribed by the convention act, can the
convention change the time? This must needs be within the inherent powers of
a convention, even though the convention act be popular rather than
legislative. Otherwise, the whole procedure might come to nought because of
a technical restriction. Such restrictions are directory rather than
mandatory, the main object being submission to the people at some time,
rather than submission at any particular time or not at all. Thus the New
York convention of 1867 sat beyond the time fixed by the convention act for
its work to be submitted to the people, for the simple and compelling reason
that its work had not then been completed.[19]
The Michigan convention of 1907-1908 was required by a purely legislative
convention act to submit its constitution at the April election of 1908. The
convention decided to submit at the November election of that year, and by
mandamus {198} forced the Secretary of State to recognize that the
convention and not the legislature was the master.[20]
[§5. Convention may submit its constitutional changes together or
separately.]
The next question to be considered is: Need the convention submit its
constitutional changes en bloc? That this question should arise at all is
probably due to the idea that there is something inherently different
between a new constitution and an amended constitution. But as the Supreme
Court of Rhode Island has well said:
Any new constitution, therefore, which a convention would
form, would be a new constitution only in name; but would
be in fact our present Constitution amended. It is
impossible for us to imagine any alteration, consistent with
a republican form of government, which cannot be
effected by specific amendment as provided in the
Constitution.[21]
But in spite of this, there have been a number of adverse expressions of
opinion, which can all, however, be traced to a misconception of the famous
opinion of the justices of the Massachusetts Supreme Court of 1833.[22] Thus
Dodd erroneously says:
The Massachusetts judges thought that there was no
power to adopt specific amendments except in the manner
provided by the constitution, but did not express any
opinion upon the question whether a convention might be
called for a general constitutional revision; their opinion
cannot therefore be cited in support of the view that a
convention may not be called for a general revision without
constitutional authorization, and such a convention was in
fact held in Massachusetts in 1853.[23]
Yet what the Massachusetts Supreme Court really said was this:
The court do not understand that it was the intention of the
House of Representatives to request their opinion upon the
natural right of the people in cases of great emergency, or
upon the obvious failure of their existing constitution to
accomplish the objects for which it was designed, to
provide for the amendment or alteration of their
fundamental laws; nor what would be the {199} effect of
any change and alteration of their Constitution, made
under such circumstances and sanctioned by the assent of
the people. Such a view of the subject would involve the
general question of natural rights, and the inherent and
fundamental principles upon which civil society is founded,
rather than any question upon the nature, construction, or
operation of the existing constitution of the
Commonwealth, and the laws made under it. We
presume, therefore, that the opinion requested applies to
the existing constitution and laws of the Commonwealth,
and the rights and powers derived from and under them.
Considering the questions in this light, we are of opinion,
... that, under and pursuant to the existing Constitution,
there is no authority given by any reasonable construction
or necessary implication, by which any specific and
particular amendment or amendments of the Constitution
can be made, in any other manner than that prescribed in
the ninth article of the amendments adopted in 1820.[24]
Jameson construes the phrase "specific and particular amendment or
amendments" as follows:
The force of these quotations may be better apprehended
by considering what the Convention meant by a "specific
amendment." Undoubtedly it meant an amendment which
had been distinctly formulated in its terms in the public
mind, and one of which the necessity had been generally
acknowledged, in contradistinction from a change,
indeterminate in its character and extent, which might be
shown to be advisable upon a revision of the whole
Constitution. A specific amendment, being a definite
proposition, might safely be submitted to the people to
pass upon, yes or no; for it required no modification to
adjust it to possible changes in other parts of the same
instrument. Not so with an indeterminate amendment, to
be matured by discussion, and after multiplied
adjustments, and which might turn out to be a single
proposition, or a few simple propositions, or a completely
new Constitution. For such a work only a Convention is
adapted.
Recurring, then, to the question whether, where a
Constitution contains no provision for amendments save in
the legislative mode, a Convention can be called, the
answer must be, both upon principle and upon precedent,
that a Convention can be called, certainly when a revision
of the whole Constitution is desired, to determine what
amendments, if any, are needed, or, if deemed advisable,
to frame a new Constitution. In general, whenever a
Convention is called, the intention is to authorize a revision
of {200} the entire Constitution, though upon its meeting,
the result of its labors may be only to recommend specific
amendments.[25]
[§6. Distinguishing replacement from revision or amendment.]
The phrase "specific and particular amendment or amendments" is the exact
phrase used in the amending clause of the present Massachusetts
constitution. It is a technical phrase of Massachusetts constitutional law
and means no more or less than the mere word "amendment." It has always been
so recognized in that State, as is shown by the fact that every attempt to
establish a new method of constitutional amendment has always used the whole
phrase. Thus, according to Jameson's interpretation and to the practice in
Massachusetts, any definite constitutional change, from the establishment of
a complete new constitution down to the changing of a mere comma would be a
specific and particular amendment.
The real distinction drawn by the Massachusetts Supreme Court was not
between single amendments and a general revision of the constitution, but
was between constitutional and extraconstitutional methods of revision. The
Supreme Court very decidedly does not refer to the extraconstitutional
method as consisting only in a general revision of the constitution, but on
the contrary refers to it as "the amendment or alteration of their
fundamental laws" and as "any change and alteration of their constitution."
That this is the view held by constitutional lawyers in Massachusetts is
seen by the following quotation from a very recent local law article:
It was assumed in the opinion, that the opinion requested
applies to the existing constitutions and laws of the
Commonwealth and the rights and powers derived from
and under them, and did not depend upon the natural right
of the people in cases of great emergency, or upon the
obvious failure of their existing constitution to accomplish
the objects for which it was designed, to provide for the
amendment and alteration of their fundamental laws.[26]
It is also seen from the fact that the voters of Massachusetts, in calling
the convention of 1917, voted on the question: "Shall there be a convention
to revise, alter or amend the constitution of the Commonwealth?"[27] The
affirmative vote on {201} this question clearly authorized the convention to
submit separate amendments. So also the convention act provides:
Any such revision, alterations or amendments, when
made and adopted by the said convention, shall be
submitted to the people for their ratification and adoption,
in such manner as the convention shall direct.[28]
The use of the word "amendments" in the plural shows that the submission of
separate amendments was within the contemplation of the act, and the
convention is authorized to use its discretion in this matter by the words
"in such manner as the convention shall direct."
The convention to be held in Indiana in 1918, although called for the
purpose of framing an entire constitution, is expressly authorized by the
convention act to submit any question separately.[29]
[§7. Conventions too cumbersome and expensive for minor changes.]
The only real distinction between a general revision and revision by
separate amendments is that the constitutional convention would be too
expensive unless there were a lot of changes to be made. As Judson says:
The convention is a very proper form of organization for
framing a complete constitution. It is, however, obviously
too cumbersome and expensive a thing for mere
amendment, unless, indeed, the amendment in question
should be of extraordinary importance.[30]
Dodd takes the same view in the following language:
The discussion heretofore has been based upon the
general view that constitutional conventions are employed
for the complete revision of state constitutions or for the
framing of new constitutions, and that, where a general
revision is not desired, the regular legislative machinery is
used to initiate specific amendments. This view is, in the
main, correct. Yet of course a constitutional convention
when assembled may not make a general revision but may
simply propose specific amendments. In the state of New
Hampshire specific amendments may only be proposed by
a convention. However, where only a few changes are
{202} desired the convention is an expensive and
cumbersome instrument which will not often be employed
except in case of necessity. On the other hand several
constitutions make no provision for a convention, and in
Rhode Island the absence of such provision has been held
to prevent the holding of a convention so that here the
legislative process is the only one available for
constitutional alteration.
May not the legislative power of initiating amendments be
used in such a manner as to propose a complete
constitutional revision? This may be done where the
legislature is not restricted as to the number or character of
amendments which it may propose, but precedent is
against the exercise of such power by a legislature,
although in Rhode Island this is the only way of obtaining a
complete constitutional revision. Two state legislatures
have submitted to the people revised constitutions in the
guise of amendments, but in both cases the legislative
revisions were rejected. The Michigan legislature
submitted a revised constitution in 1874, and the Rhode
Island legislature submitted the same instrument twice, in
two successive years, 1898 and 1899.
Judge Jameson has said as to the legislative method of
proposing amendments. "It ought to be confined, it is
believed, to changes which are few, simple, independent,
and of comparatively small importance. For a general
revision of a Constitution, or even for single propositions
involving radical changes as to the policy of which the
popular mind has not been informed by prior discussion,
the employment of this mode is impracticable, or of
doubtful expediency." Judge Jameson's point is purely one
as to expediency, and it is legally proper, it would seem, in
the absence of specific constitutional restrictions, to
propose to the people by the legislative process any
constitutional alteration short of a complete revision, or
even a complete revision.[31]
The subsidiary question he touched on, namely the power of the legislature
to submit a whole constitution in the regular legislative method for
submitting amendments, should be distinguished from the question of the
power of the legislature to submit a whole constitution, acting like a
constitutional convention, which latter question was discussed in an earlier
chapter.[32]
[§8. Some arguments for and against separate submission.]
Reverting to the question of separate submission, we find that Jameson
presents a strong argument in favor of separate submission:
{203} A Constitution may be wholly new, or it may be an
old one revised by altering or adding to its material
provisions. It may, also, in a hundred separate
subdivisions, contain but a fourth of that number of distinct
topics, or each subdivision may be substantive and
independent. It is obvious that the submitting body,
weighing accurately the public sense, may determine
whether the whole Constitution must stand or fall as a unit,
or whether some parts, being adopted and going into
effect without the rest, the new system would be adequate
to the exigencies of the state, and may submit it as a whole
or in parts accordingly. But it is perfectly clear that every
distinct proposition not vital to the scheme as a whole, or
to some other material part, ought to be separately
submitted. If it were not nearly impracticable, the best
mode would be to submit every distinct proposition
separately, so that each voter could vote yes or nay upon
it, regardless of anything but its absolute propriety.[33]
Nevertheless it is true that
In far the larger proportion of the cases in which
submission has been made, it has been of the instruments
entire. This was naturally true, in general, of all such as
were the first constitutions of their respective States.
The earliest departure from this mode was in
Massachusetts, in 1780, in which the Frame of
Government and Bill of Rights were both submitted in such
a way as to enable the people to reject the whole or any
part of either, ... a course followed by all the subsequent
Conventions in that State, though the Act calling the
Convention of 1820 left it to the discretion of that body to
determine the mode in which the submission should be
made. The example set by Massachusetts in 1780 was
followed by New Hampshire in 1791, and in the
subsequent revision in 1850. The Acts calling the New
York Conventions of 1821 and 1846 required those
bodies to submit their proposed amendments to the
people, together or in distinct propositions, as to them
should seem expedient. Accordingly, the Convention of
1821 provided that they should be submitted "together,
and not in distinct parts;" and that of 1846, expressing the
opinion that the amendments it proposed could not be
prepared so as to be voted on separately, submitted them
en masse excepting one, that relating to "equal suffrage to
colored persons," which was submitted as a separate
article. Under a similar discretion, the Pennsylvania
Convention {204} of 1837 submitted its amendments en
masse. The Illinois Convention of 1847 and 1862, and the
Oregon Convention of 1857, pursued a course similar to
that of the New York Convention of 1846, submitting the
great body of their respective Constitutions entire, but a
few articles relating to slavery, to the immigration of
colored persons, the public debt, and other subjects
considered of doubtful policy, separately.[34]
In 1820 a convention act was vetoed in New York, for the following reason,
among others:
Because the bill contemplates an amended Constitution, to
be submitted to the people to be adopted or rejected, in
toto, without prescribing any mode by which a
discrimination may be made between such provisions as
shall be deemed salutary and such as shall be disapproved
by the judgment of the people. If the people are
competent to pass upon the entire amendments, of which
there can be no doubt, they are equally competent to
adopt such of them as they approve, and to reject such as
they disapprove; and this undoubted right of the people is
the more important if the Convention is to be called in the
first instance without a previous consultation of the pure
and original source of all legitimate authority.[35]
The more recent constitutional conventions which have been held have
proceeded in the following manner:
The Michigan convention of 1907-1908 submitted a new
constitution entire.[36] The New Hampshire convention of
1912 submitted twelve separate amendments of the old
constitution.[37] The Ohio convention of 1912 submitted
forty-two separate propositions.[38] The New York
convention of 1915 submitted a new constitution and two
additional separate propositions.[39]
See the following quotations on methods of submission:
Conventions may submit separate amendments to be
voted on by the people one by one or all together.[40]
{205} It lies in the discretion of a convention ordinarily as
to whether its work shall be submitted: 1, in the form of
separate amendments to an existing constitution; 2, as a
complete new constitution; or 3, as a new constitution, but
with separate provisions which may be voted upon
independently.[41]
Thus we may conclude that a constitutional convention may submit its changes
in whatever form it considers best adapted to ascertain and accomplish the
will of the people.
[§9. Power to change size and composition of electorate to whom changes
referred.]
A related question is the power of the convention to enlarge or reduce the
electorate to which it refers the amendments. Some constitutional provisions
and convention acts are specific on this point. Thus the act for the holding
of the Indiana convention of 1918 provides that the "new constitution shall
be submitted to the legal voters of the state of Indiana to be by them
ratified or rejected."[42] Another act of the same session extended the vote
in this connection to women.[43]
On the other hand, the act for the holding of the Massachusetts convention
of 1917 merely provides that the amendments "shall be submitted to the
people for their ratification and adoption, in such manner as the convention
shall direct."[44]
In cases where the constitution has been held to apply to a convention, it
has been held that neither the legislature nor the convention has a right to
prescribe other qualifications than those set forth in the constitution.[45]
Where the constitution does not apply, however, Dodd has pointed out that
In most of the cases in which constitutional provisions
regarding the suffrage have not been observed, there has
actually been a widening of the suffrage ... with reference
to the vote for delegates to a convention, and ... with
reference to the popular vote upon a proposed
constitution.[46]
In many of the cases cited by Dodd the change was made by the legislature
rather than by the convention, but even these {206} serve to illustrate the
inapplicability of the constitutional qualifications of voters.
The convention which framed the original constitution of Massachusetts
extended the right of suffrage beyond that prescribed by the charter then in
force. The charter said:
Provided alwayes that noe Freeholder or other Person
shall have a Vote in the Eleccon of Members to serve in
any Greate and Generall Court or Assembly to be held as
aforesaid who at the time of such Eleccon[1] shall not have
an estate of Freehold in Land within Our said Province or
Territory to the value of Forty Shillings per Annu[2] at the
least or other estate to the value of Forty pounds Sterl'.[47]
And the constitution framed by the convention increased these qualifications
fifty per cent as follows:
And at such meetings every male inhabitant of twenty-one
years of age and upwards, having a freehold estate within
the commonwealth, of the annual income of three pounds,
or any estate of the value of sixty pounds, shall have a right
to give in his vote for the senators for the district of which
he is an inhabitant.[48]
Nevertheless, the various towns, on the recommendation of the legislature,
permitted all adult freemen to vote for delegates; and the convention,
following the same recommendation, chose the adult freemen as the electorate
to represent the people, in passing upon the proposed constitution.
[§10. Instances in which electorate has been altered for purpose of voting
on constitutional changes.]
It may be well to give a tabulation of some instances in which the
electorate has been altered for the purpose of voting on constitutional
changes:
In the following case the legislature plus the electorate extended the
electorate: New York (1821).[49]
In the following, the legislature alone did the extending:
New Jersey (1844),[50] Rhode Island (1841 and 1842).[51]
In one case the convention did so, acting with assent of
both legislature and electorate: Massachusetts (1780).[52]
{207} In two cases the convention did so, with the assent
of the legislature: Virginia (1830),[53] Illinois (1869).[54]
In the following, the convention on its own initiative
extended the electorate: Louisiana (1845 and 1852),[55]
Michigan (1835),[56] Texas (1845),[57] Virginia (1851),[58]
West Virginia (1863),[59] Tennessee (1834),[60] Kansas
(1859),[61] Arkansas (1868).[62]
Two of these conventions reduced the electorate in some
particulars as well as extending it in others: Tennessee
(1834),[63] and Arkansas (1868).[64]
Electorates have also been reduced by oaths of allegiance required by
reconstruction acts, and by the following conventions:
Maryland (1864), Missouri (1865), New York (1867).[65]
Such oaths have been held to be ex post facto laws,
when required as a condition precedent to holding office
or pursuing certain lines of business.[66] But, as voting is not
a property right, it is to be doubted if the principle of these
cases would be extended to prohibit the application of the
same restriction to voters.
[§11. Alteration of electorate by convention.]
The Supreme Court of Missouri has, in the following language, sustained the
validity of the ordinance of the convention of 1865, which reduced the
electorate to those who could take the test oath:
As the representatives of the people, clothed with an
authority so ample as that, certainly its power to prescribe
the means by which it was thought best to ascertain the
sense of the qualified voters of the State upon that
instrument cannot be seriously questioned. The ordinance
had in itself every element necessary to give it legal force
and effect, and was therefore binding upon the voter.[67]
The Justices of the Supreme Court of Massachusetts have, however, recently
given an opinion which apparently holds that the electorate prescribed by
the constitution for voting for certain mentioned offices and on amendments
submitted by the {208} legislative method is the only electorate which can
vote under the convention method. They first say:
The validity and powers of this convention are not
necessarily involved in these questions. Without discussing
that subject, we are of opinion that ... if the convention to
revise and alter the Constitution is held under the
Constitution, etc.
This is their premise, assumed by them merely for the purposes of argument;
doubtless because they rightly felt that, if the convention is authorized by
some extraconstitutional power, they, the justices of the court, being
constitutional officers, would have no right to pass upon any questions
involved. Acting on the foregoing premise, namely, that the convention is
held under the constitution, which however they refuse to decide, the
justices say:
The Constitution of Massachusetts in its original form
defined the qualifications of the electorate. Chapter 1,
Section II, Article II; Chapter 1, Section III, Article IV.
These qualifications have been modified by Articles III,
XVII, XX, XXVIII, XXXI and XXXII of the
Amendments. The words of the Constitution as it now
stands are "Every male citizen of twenty-one years of age
and upwards, excepting paupers and persons under
guardianship, who shall have resided within the
Commonwealth one year, and within the town or district in
which he may claim a right to vote six months next
preceding any election ... shall have a right to vote" for
governor and other officers. Although these provisions in
express terms relate only to the qualifications of voters for
the elective officers therein named, it is a necessary and
imperative implication that these electors and these only
can be treated as qualified to vote to change the
Constitution. The words "qualified voters" as used in
Article IX of the Amendments, wherein are the provisions
for amendments to the Constitution, mean the voters
qualified according to the requirements of the Constitution.
It is an essential and inevitable limitation upon the power
vested in the legislative body of a state established by a
written Constitution that it cannot provide for the revision
or change of the frame of government except in a lawful
and orderly method and by the body of electors
determined according to the terms of that frame of
government. The "people" who have a right to vote upon
any essential aspect of that revision and change, either for
members of the convention or the acceptance {209} or
rejection of its work, are the people who have a right to
vote for state officers and upon state questions, namely,
the voters as described by the Constitution itself. It is
elementary that the existing Constitution continues in full
force and effect until changed or destroyed by act of the
sovereign people. It seems indisputable that there is no
power under the Constitution, except the sovereign people
acting in accordance with their self-imposed, limiting
methods of procedure, to enlarge the electorate so as to
include as voters persons not eligible to vote upon
amendments to the existing Constitution. ... The
Legislature can proceed only under the Constitution. It
would be contrary to its duty to that Constitution to
provide for its revision or alteration by a body of electors,
whose qualifications were different from those ascertained
by the terms of that Constitution. The power of the
Legislature to enact that women may be members of or
vote for local or other subordinate boards of officers (See
Opinions of Justices, 115 Mass. 602; 136 Mass. 578) is
of a different character. The existence of that power
touching officers created by the Legislature affords no
basis for argument that like power exists to change the
electorate established by the Constitution for state
affairs.[68]
[§12. Arguments against alteration of electorate by convention.]
In opposition to this opinion, it may be argued as follows:
First, the court is proceeding upon a premise which is rather questionable,
and on the validity of which the court is therefore wise in refusing to
pass, namely, that the constitution authorizes a popular convention.[69]
Secondly, the court assumes, as its second premise, that the constitution of
Massachusetts establishes an "electorate for state affairs"; whereas it is
arguable from an inspection of that instrument itself, that the electorate
which it establishes relates merely to the election of certain specified
State officers, and possibly to the ratification of amendments submitted by
the legislature.[70] The theory that the constitution, by prescribing an
electorate for certain officers, thereby impliedly prescribes the same
electorate for all State affairs, may well be a violation of the principle
of construction of instruments, that the express mention of one thing
amounts to {210} an implied exclusion of all else.[71] This opinion of the
Massachusetts court, if carried to its logical conclusion, would render
invalid the partial suffrage laws, whereby in many States women may, by
legislative act, vote for such State officers as are not expressly mentioned
in the constitution,[72] which laws have been held valid in actual
litigation.[73]
Thirdly, the court ignores all of the instances in which, with uniform
success, legislatures and conventions have enlarged or reduced the
electorate.[74] Is it not arguable that, if there had been any doubt of the
legality of such changes, it would have been raised in the courts before
this?
Fourthly, the court's opinion is sustainable upon another ground than that
mentioned by them, namely, upon the ground that the legislature cannot amend
what the people have enacted.[75]
For these reasons, we may well wait for a decision by the Massachusetts
court in a litigated case,[76] before concluding that this is their final
view on the subject. The last above reason suggests a related ground on
which the court might have based its opinion, and which if valid, would bar
the convention from changing the electorate, although it would not have
barred the inclusion of such a change in the original act. The ground is,
that the voters, in adopting the act, used the term "people" in its commonly
accepted sense of "voters," and that this use of the word is binding both on
the legislature and the convention. But on the other hand, it is equally
arguable that this word was used in the light of the many precedents in
which conventions have picked what electorate should represent the people.
Jameson discusses, as follows, the alteration of the electorate by a
convention:
{211} Of these, the largest proportion were cases in
which submission was made to the electors plus certain
designated classes of persons previously not entitled to
vote at such elections, and the residue, of cases in which
submission was made to the electors minus certain classes
of persons thus entitled, according to existing laws.
------------
In most of these cases the effect was, on the whole,
doubtless to increase the existing electorate. In five of
them the Convention Acts expressly authorized the
Conventions to submit in the manner described, but in the
residue no such authority was given or pretended.
It is evident that in these cases, a new principle was
introduced, namely, that of submitting proposed changes in
the fundamental law to persons other than the body
entrusted with the electoral function under existing laws; in
some cases, to citizens forming no part of the existing
governmental system; in others, to a part only of the
citizens comprised in that system. Such a submission,
especially when made to persons not forming a part of the
existing electorate, it is conceived, was not only a novelty
but a capital innovation, upon which might hang, for the
States concerned, the most weighty consequences; and,
unless the principles which ought to govern in the
enactment of fundamental laws are misconceived, it was
unconstitutional and in the highest degree dangerous.[77]
But the uniform success of such electoral changes shows that, even if
unconstitutional, they are nevertheless valid and effective. Besides, there
is no reason to suppose that a matter not covered by the constitution, and
which the constitution probably could not control if it tried,[78] can be
unconstitutional.
The Indiana constitution does not provide for the holding of conventions,
but does provide that only males shall vote on proposed constitutional
amendments. Nevertheless, the legislature has decreed that women may vote on
the constitutional amendments which may be submitted by the coming
convention,[79] thus clearly showing that the opinion in that State is to
the effect that general constitutional provisions relative to the
qualifications of voters do not apply to amendments submitted by an
extraconstitutional convention.
{212} An objection is sometimes made that if the convention has the power to
enlarge the electorate in order to get a better expression of public
opinion, they have an equal power to reduce the electorate; and this is
urged in support of the theory that they have no power to tamper with the
electorate at all; but this argument can be met by quoting the following
passage from the Constitution of the United States:
The right of citizens of the United States to vote shall not
be denied or abridged by the United States, or by any
state, on account of race, color, or previous condition of
servitude.[80]
[§13. Determination of method of conducting ratification election.]
As to method of submission we have already seen that an extraconstitutional
convention has the power, after the submission of changes to the people, to
reconvene and codify the new constitution.[81] The manner of conducting the
election at which the amendments are submitted is usually entrusted by the
convention act to the convention. And in this connection, the convention has
the power to pass all necessary incidental legislation.[82] But where the
legislature attempts to prescribe the method, there is at least one decision
to the effect that the legislative provisions are binding, particularly when
ratified by the people.
The power claimed for the convention is, by ordinance, to raise a commission
to direct the election upon the amended constitution, in the city of
Philadelphia, and to confer power on this commission to make a registration
of voters, and furnish the lists so made to the election officers of each
precinct; to appoint a judge and two inspectors for each division, by whom
the election therein shall be conducted. This ordinance further claims the
power to regulate the qualifications of the officers thus appointed to hold
the election and to control the general returns of the election. It is
clear, therefore, that the ordinance assumes a present power to displace the
election officers now in office under the election laws for the city, to
substitute officers appointed under the authority of the convention, and to
set aside these election laws so far as relates to the qualification of the
officers and the manner in which the general returns shall be made, and in
other respects not necessary to be noticed. The authority to do this is
claimed under the fifth section {213} of the Act of 1872, giving the
convention power to submit the amendments, at such time or times, and in
such manner as the convention shall prescribe, subject, however, to the
limitation as to the separate submission of amendments contained in this
act. It is argued that the manner of submission confers a power to conduct
the election upon the matter submitted. To state the proposition is to
refute it, for the manner of submitting the amendments is a totally
different thing from conducting the election upon the submitted
amendments.[83]
But the question was really one of the power of popular, rather than of
legislative, control. One final suggestion:
When the work of a convention is submitted, it would be
desirable to have mailed to each voter the text of
proposals, together with explanations. For a populous
state this would be expensive, but the expense would
justify itself.[84]
From all the foregoing, we may deduce as follows: In the absence of popular
restrictions on the convention, or in the presence of authorization to
determine the manner of submission, the general authority of the convention
over the manner of submission will include the date of the election, the
election officials, the time at which the amendments shall take effect and
even the choice of the particular electorate who shall be employed by the
convention to represent the will of the people. The right to determine when
the changes shall take effect includes the right to decree that they shall
take effect when codified and promulgated by the reconvened convention.
------
1. Dodd, pp. 62-64.
2. Dodd, pp. 64-67. Arizona and New Mexico submitted to the people in 1910.
Louisiana in 1913 did not.
3. Dodd, pp. 68-70.
4. See [Ch. IV §7] pp. 55-56, supra.
5. Dodd, p. 68
6. VII "Va. Law Reg," 100.
7. Ill. Laws 1846-1847, Act of Feb. 24, 1847, Sec. 6; Ill. Const. 1847,
Schedule, Art. 4.
8. Dodd, p. 68.
9. See [Ch. XIV §10] pp. 182-184, supra.
10. Taylor v. Commonwealth (1903), 101 Va. 829; Miller v. Johnson (1892), 92
Ky. 589.
11. Wells v. Bain (1872), 75 Pa. 39, 52.
12. 6 R. C. L., § 17, p. 27.
13. Deb. Mass. Conv. 1853, Vol. I, p. 75.
14. For a fuller discussion, see [Ch. VIII §4, Ch. IX §6] pp. 103, 116,
supra.
15. See [Ch. VIII §1-4] pp. 97-104, supra.
16. See [Ch. IX §2-6] pp. 105-116, supra.
17. Opinion of Justices (1889), 76 N. H. 612.
18. Jameson, p. 545, n. 1.
19. Dodd, p. 82.
20. Carton v. Secy. of State (1908), 151 Mich. 337, 338-339.
21. Opinion of Justices (1883), 14 R. I. 699, 654.
22. Opinion of Justices (1833), 6 Cush. 573.
23. Dodd, p. 45.
24. Opinion of Justices (1833), 6 Cush. 573, 574.
25. Jameson, pp. 614-615.
26. Arthur Lord in II "Mass. Law Quarterly," 1, 24.
27. Mass. Gen. St. 1916, c. 98, § 1.
28. Mass. Gen. St. 1916, c. 98, § 6.
29. Ind. 1917 Senate Bill 77, § 1.
30. Judson, Essentials of a Written Const., p. 14.
31. Dodd, pp 258-261.
32. Chapter VI, supra.
33. Jameson, pp 531-532
34. Jameson, p. 533.
35. Jameson, p. 671.
36. Journal, Mich. Conv. 1907-1908, Vol. II, pp. 1502-1533.
37. Journal, N. H. Conv. 1912, pp. 562-564.
38. Journal, Ohio Conv. 1912, pp. 1050-1073.
39. Rev. Record, N. Y. Conv. 1915, Vol. IV, p. 4335. For a list of earlier
instances see Dodd, p. 259, n. 243.
40. McClure, "State Const. Making," p. 351.
41. N. Y. Revision of Consts., p. 71; Dodd, p. 258, n. 243.
42. Ind. 1917 Convention Act, § 1.
43. Ind. 1917 Senate Bill 77, § 1.
44. Mass. Gen. St. 1916, c. 98, § 6. The Supreme Court of Massachusetts has
ruled (Senate Doc. 512 of 1917) that this means submission to those entitled
to vote for certain State officers.
45. Green v. Shumway (1868), 39 N. Y. 418, 426.
46. Dodd, p. 58, n. 60.
[1] In the original a tilde ~ bridges over the double "c".
[2] In the original there is a tilde over the final "u".
47. Thorpe, Vol. III, pp. 1878-1879.
48. Mass. Const., Ch. I, § II, Art. II. Similarly as to other officers.
49. Laws of N. Y., 1821, c. 90.
50. Laws of N. J. 1843-1844, p. 111; Bott v. Secy. of State (1898), 62 N. J.
L. 107, 121, 123-124.
51. Mowry, The Dorr War, pp. 119-120, 283.
52. See above on this page.
53. Va. Acts, 1828-1829, c. 15; Thorpe, Vol. III p. 3825.
54. Ill. Act, Feb. 25, 1869; Thorpe, Vol. II, p. 1047.
55. Thorpe, Vol. III, p. 1410; Vol. III, p. 1428.
56. Thorpe, Vol. IV, p. 1942.
57. Thorpe, Vol. VI, p. 3566.
58. Thorpe, Vol. VII, p. 3850.
59. Thorpe, Vol. VII, p. 4011.
60. Thorpe, Vol. VI, p. 3441.
61. Thorpe, Vol. II, p. 1259.
62. Thorpe, Vol. II, p. 330.
63. Thorpe, Vol. VI, p. 3441.
64. Thorpe, Vol. II, p. 330.
65. Jameson, p. 522.
66. Cummings v. Missouri (1866), 4 Wall. 277, 318.
67. State v. Neal (1868), 42 Mo. 119, 123.
68. Mass. 1917 Senate Doc. 512.
69. See [Ch. IV §4, §6] pp. 45, 50, supra.
70. Mass. Const., Amendments III, XVI; XVII, and possibly IX. The Justices
themselves say, in this very opinion: "these provisions in express terms
relate only to the qualifications of voters for the elective officers
therein named."
71. This legal maxim reads: "Expressio unius est exclusio alterius."; It is
possible to construe the recent Massachusetts opinion as changing it to
read: "Expressio unius est inclusio omnium aliorum."
72. Ill. Laws of 1913, p. 333; Ind. 1917 Senate Bill 77; Ohio Act of 1917;
Michigan Act of 1917; Rhode Island Act of 1917; Nebraska Act of 1917; North
Dakota Act of 1917.
73. "The Constitution refers only to elections provided for by that
instrument." Scown v. Czarnecki (1914), 264 111. 305, 312; approved in
People v. Militzer (1916), 272 111. 387, 392.
74. See the instances given immediately supra.
75. See [Ch. VIII §1-4] pp. 97-104, supra.
76. Woods v. Woburn (1915), 220 Mass. 416, 418; Young v. Duncan (1914), 218
Mass. 346, 351, and cases therein cited.
77. Jameson, pp. 516-517.
78. See [Ch. IV §5-6, Ch. XIII §2] pp. 50-52, 166-167, supra.
79. Ind. Const., II, 2; Ind. 1917 Senate Bill 77.
80. U. S. Const., Amendment XV, § 1.
81. See [Ch. XIV §10] pp. 182-184, supra.
82. See [Ch. XI §11] pp. 146-147, supra.
83. Wells v. Bain (1872), 75 Pa. 39, 53-54.
84. N. Y. Revision of Consts., p. 72.
------------